Hearsay and the Child Victim

Cases cited in this outline were found through LexisNexis beginning with the Crawford decision on March 8, 2004 through the publishing of this outline on January 4, 2005. There are 591 cases citing Crawford to date. However, not all post-Crawford cases are listed in this outline, but all cases citing major propositions are listed. This outline is updated monthly. To receive email copies of the update, please email the author at the email address above.

"But justice, though due the accused, is due the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true."

This case involved admitting the preliminary hearing transcript of a missing unavailable witness. The Supreme Court held that that the transcript was admissible and the Confrontation Clause was satisfied at the first hearing. If a witness becomes unavailable at trial, the prosecutor has the burden to prove unavailability and that the hearsay statement (1) fell into a firmly rooted exception, or (2) has an "indicia of reliability" or trustworthiness.

This case involved two child victims (one who testified and one who was too young to testify). The Supreme Court relied on Ohio v Roberts in ruling that child hearsay statements could be admitted under the residual hearsay exception without the child testifying if the statement was deemed trustworthy under the totality of the

circumstances surrounding the making of the statement (i.e., not looking to corroborative evidence). This allowed for many states to admit videotaped forensic interviews without the child having to testify.

This case involved, inter alia, statements of a child victim to an investigating police officer that were admitted as spontaneous declarations and statements to a physician that were admitted as medical diagnosis/treatment exception. The only question presented in White was whether the Confrontation Clause imposed an unavailability requirement on the types of hearsay at issue. The 4 yr old child victim did not testify. The White Court held "Where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied. Establishing a generally applicable unavailability rule would have few practical benefits, while imposing pointless litigation costs."

◙ Shield child victims/witnesses from testifying and minimize further trauma

◙Forge ahead on domestic violence cases when the victim is uncooperative or

◙Development of cases that protected victims from further trauma or harassment

◙ U.S. Supreme Court decision on 3-8-04 . ■ 124 S.Ct. 1354; 158 L.◙77 (2004)

◙ Court only addressed Confrontation Clause issue rather than reliability issues

◙ Overrules Ohio v Roberts and undermines Idaho v Wright and Illinois v White

◙ "Testimonial" statements no longer admissible unless witness takes the stand and is subject to cross-examination

Many cases are being remanded by U.S. Supreme Court to the trial courts for consideration in light of Crawford.

In Crawford, testimonial was defined at a minimum as being from a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. If an out-of-court statement is taken by a government agent (police officer, prosecutor, CPS worker employed by the state), the statement will be considered testimonial so long as the witness reasonably could expect that statement to be used at a later trial.

Muyet v. United States, 2004 U.S. Dist. LEXIS 25959 (SDNY 2004) - If a conviction becomes final prior to the creation of a new rule, then the new rule cannot be retroactively applied. In this case, the Defendant's conviction was upheld on appeal in September 2000 and Crawford was not decided until March 2003. Therefore, Crawford does not retroactively apply. The Second Circuit has not decided whether Crawford should apply retroactively to collateral attacks.

Johnson v. Renico, 314 F. Supp. 2d 700 (E.D. Mich. 2004) - Habeas Petition to Federal Court by Michigan state court defendant after exhausting all state appellate rights. The Court held that the confrontation clause does not prohibit all hearsay. Habeas Petition denied because the habeas court will only look to the law that existed at the time of trial or the time of decision on the issue and, therefore, Crawford did not apply in this case.

Murillo v. Frank, 316 F. Supp. 2d 744 (E.D. Wis. 2004) - In a state court conviction and habeas petition to federal court, the court can only apply Crawford if it existed at the time of trial in state court.

Davis v. United States, 848 A.2d 596, 2004 D.C. App. LEXIS 2004 - Although Crawford was decided after Davis's perjury trial stemming from a previous murder trial, "all newly declared rules of law must be applied retroactively to all criminal cases pending on direct review or not yet final. ..." This involves state cases still in the state appeal process.

Ramirez v. State, 2004 Tex. App. LEXIS 11600 (2004) - "Defendant argued that his confrontation rights were violated and that he was denied effective assistance of counsel. The court noted that, at no time did counsel argue that defendant's confrontation rights were being denied by proceeding without the presence of a witness who could not be located. In fact, defendant's counsel did not assert a violation of his confrontation rights at any time during the trial. Because an issue raised on appeal had to correspond to the precise objection made in the trial court, defense counsel's hearsay objection to an officer's testimony regarding the missing witness's statements to him did not preserve error on confrontation clause grounds. Thus, defendant did not preserve his confrontation claim. Defendant had also failed to establish deficient performance by his trial counsel. The allegation of ineffective assistance based on failure to request a sudden passion instruction during punishment was not raised in defendant's motion for new trial, and no evidence was developed in support of the claim. Absent record evidence to the contrary, the court had to presume that counsel's conduct fell within the wide range of reasonable professional assistance."

United States v. Bowes, 2004 U.S. App. LEXIS 24758 (2^nd Cir NY 2004) - Defendant was convicted after the plea allocution of a co-conspirator was admitted at trial. Defendant objected at trial on grounds of unavailability of the co-conspirator and that the allocution was not probative of the conspiracy. The Defendant did not object and preserve on the issue of Confrontation. Although admitting the plea allocution violated Crawford, the case was reviewed under a modified plain-error analysis and the conviction was upheld.

Testimony is a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." Not casual remarks.

People v. Lee, 124 Cal. App. 4th 483 (Cal App 2d Dist 2004) - Tape recorded statements were take of two eyewitnesses to the crime. Both witness were available for trial but did not appear or testify. Admitting the statements at trial violated Crawford.

Richardson v. Newland, 2004 U.S. Dist. LEXIS 21901 (ED Cal 2004) - Statements given to police officers by individuals who do not appear at trial are testimonial statements and require the witness to appear at trial and be subject to confrontation in order to admit the statement.

United States v. Manfre, 368 F.3d 832, 2004 U.S. App. LEXIS 9162 (8th Cir Ark 2004) - "an accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not."

Hiibel v. Sixth Judicial Dist. Court, 124 S.Ct. 2451 (2004) - "police questioning during a Terry stop qualifies as an interrogation, and it follows that responses to such questions are testimonial in nature."

State v. Barnes, 2004 Me. LEXIS 124 (2004) - "Defendant argued that the admission of his mother's statements to a police officer following an earlier alleged assault constituted a violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution. Specifically, the issue was whether the statements were "testimonial" in nature. The state supreme court concluded that the admission of the statements did not violate the Confrontation Clause for several reasons. First, the police did not seek the mother out. She went to the police station on her own. Second, her statements were made when she was still under the stress of the alleged assault. Third, she was not responding to tactically structured police questioning, but was instead seeking safety and aid. The police were not questioning her regarding known criminal activity. Thus, the interaction between defendant's mother and the officer was not structured police interrogation triggering the cross-examination requirement of the Confrontation Clause. Nor did the victim's words in any other way constitute a "testimonial" statement. Therefore, it was not obvious error for the trial court to admit the officer's testimony."

United States v. Saner, 313 F. Supp. 2d 896, 2004 U.S. Dist. LEXIS 6293,2004-1 Trade Cas. (CCH) P74362 (S.D. Ind. 2004) - "In response to the prosecutor's questioning, Vogel [who was not in custody] made ex parte statements incriminating himself and Saner, which a paralegal transcribed. The prosecution now seeks to use the statements at trial against both Defendants. In other words, Vogel will "bear testimony" against Saner at his criminal trial, and Saner did not have the prior opportunity to confront him. Vogel's responses to the prosecutor's questions were testimonial statements, and admission of the statements against Saner would violate his Confrontation Clause rights under the Sixth Amendment."

United States v. Mikos, 2004 U.S. Dist. LEXIS 13650 (N.D. 111. 2004) - Statements made to governmental agents, such as US Health & Human Services agents, are testimonial and must be subject to cross-examination.

State v. Lewis, 2004 N.C. App. LEXIS 1958 (NC Ct App 2004) - An elderly victim died of unrelated causes to the crime prior to trial and the prosecutor introduced the victim's photo line up identification of the defendant and other statements made to police officers at trial. The conviction was reversed on appeal because the victim's identification of the defendant and statements made to police officers were testimonial in nature and violated the right to cross-examine.

People v. Bryant, 2004 Mich. App. LEXIS 2244 - "The police officers who responded to the shooting found Covington laying on the ground, bleeding from the chest and stomach areas. He was moaning, in obvious physical pain, winded, and had a difficult time speaking. They asked him what happened and Covington responded that he had been shot by Rick at Rick's house, through the door, and he gave the location of Rick's house and a physical description of Rick. Covington was taken from the scene by ambulance and died at the hospital. The one question asked by the police - "what happened?" - does not constitute an interrogation and there is no evidence of interrogation. Further, the statements were not any type of "ex parte in-court testimony or its functional equivalent.""

People v. Cage, 120 Cal. App. 4th 770 (2004) - "During a fight between defendant and her 15-year-old son John F., John sustained a long and nasty cut down his neck. John made three successive hearsay statements — to a police officer at the hospital, to a doctor at the hospital, and to the same police officer at the police station — each to the effect that defendant had picked up a piece of glass and deliberately slashed him with it." The court held "The statement to the police officer at the police station was clearly testimonial. The statement to the doctor at the hospital was just as clearly nontestimonial. We will hold that the statement to the police officer at the hospital was not testimonial because the interview was not sufficiently analogous to a pretrial examination by a justice of the peace; among other things, the police had not yet focused on a crime or a suspect, there was no structured questioning, and the interview was informal and unrecorded.

Liggins v. Graves, 2004 U.S. Dist. LEXIS 4889 (S.D. Iowa 2004) - Depositions are testimonial statements. A witness who testifies at a deposition and has the opportunity to be cross-examined at the deposition (whether the cross examination occurs or not) satisfies Crawford in allowing that deposition transcript to be introduced at trial if the witness is unavailable.

Howard v. State, 816 N.E.2d 948 (Ind. 2004) - A pre-trial deposition of a witness, that permitted cross-examination by the defense, can be properly admitted at trial if the witness is unavailable.

People v. Steward, 2004 Mich. App. LEXIS 2110 (2004) - Testimony at preliminary hearing is admissible at trial if the witness is declared unavailable. No Crawford violation in admitting prior testimony.

People v. Ochoa, 2004 Cal. App. LEXIS 1464 (Cal App 4^th Dist 2004) - The victim of a rape testified at preliminary hearing and was subject to cross-examination. The victim was unavailable for trial and the prosecutor admitted statements that the victim to police officers investigating the case. The defendant objected because not all the statements made to police were cross-examined during the preliminary hearing. The court ruled that defense counsel's failure to cross-examine the victim regarding all statements did not bar the police officers from providing that testimony at trial. No Crawford violation.

Primeaux v. State, 2004 OK CR 16 (2004) - "when a defendant is provided an opportunity to cross examine the witness and avails himself of that opportunity at a prior hearing, the confrontation clause is satisfied and a transcript of the prior hearing is admissible."

People v. Rossbach, 2004 Mich. App. LEXIS 1350 (2004) - "Prior testimonial evidence is admissible if the witness is unavailable and the defendant had an opportunity to cross-examine the witness. Our review of the record indicates that Rossbach had a full opportunity to cross-examine the witness at the preliminary hearing regarding his interactions with Rossbach. Accordingly, the trial court did not violate Rossbach's Sixth Amendment right to confront the witness by admitting the testimony."

People v. Patterson, 808 N.E.2d 1159, 2004 111. App. LEXIS 468 (2004) - If witness testifies at grand jury and is not subject to cross examination, the grand jury testimony cannot be admitted at trial unless the witness testifies at trial and is subject to cross examination regarding testimony given before the grand jury.

United States v. Massino, 2004 U.S. Dist. LEXIS 9733 (EDNY 2004) - A Co-Defendant's allocution at guilty plea amounts to a confession and is, therefore, testimonial. "A guilty plea is, at its heart, a confession by an accused that he or she (1) committed specific criminal acts, (2) possessed the requisite criminal intent, and (3) caused the results embodied in the elements of the charge." Therefore, the Co-Defendant must testify in order to admit the guilty plea.

People v. Woods, 779 N.Y.S.2d 494 (2004) - A transcript of a plea allocution of a co-defendant cannot be admitted against a defendant unless the co-defendant testifies and is subject to cross-examination. Admitting the plea transcript violates Crawford and the right to confront the witness.

US v Sherry, 2004 US App LEXIS 17239 (2d Cir NY 2004) - Plea allocutions of a non-testifying co-defendant are testimonial statements.

US v. Tusaneza, 2004 U.S. App. LEXIS 24186 (2d Cir NY 2004) - Plea allocutions of a non-testifying co-defendant are testimonial statements.

United States v. De La Cruz, 2004 U.S. App. LEXIS 23493 (2d Cir NY 2004) - Plea allocutions of a non-testifying co-defendant are testimonial statements.

United States v. Hundley, 2004 U.S. Dist. LEXIS 21574 (SDNY 2004) - Plea allocutions of a non-testifying co-defendant are testimonial statements.

People v. Shepherd, 2004 Mich. App. LEXIS 2501 (Mich Ct App 2004) - The plea allocution transcript of an unavailable non-testifying Co-Defendant is testimonial and requires the Co-Defendant to be cross examined before admitting.

State v. Pullen, 594 S.E.2d 248 (N.C. Ct. App. 2004) - Co-Def confession: "Because Little's statements were made to police officers in the course of an interrogation, those statements constitute testimonial evidence under Crawford. They would only be admissible if Little was unavailable at trial and if defendant had a prior opportunity for cross-examination. The parties do not dispute that Little was "unavailable" given that his attorney notified both parties that Little would invoke his Fifth Amendment rights if called to testify. Since, however, defendant had no prior opportunity to cross-examine Little as to his statements, Little's confession could not be admitted at defendant's trial without violating the Confrontation Clause."

State v. Cutlip, 2004 Ohio 2120 (2004) - Co-Defendant confessions are testimonial and co-defendant must testify or be deemed unavailable AND subject to prior cross exam to admit their confessions.

Brooks v. State, 132 S.W.3d 702 (Tex. App. 2004) - Co-Defendant confession cannot be used against Defendant unless Co-Defendant testifies at trial, or is unavailable at trial AND was cross examined prior on the statement to be admitted.

People v. Bell, 2004 Mich. App. LEXIS 2613 (Mich Ct App 2004) - Confession made by police by non-testifying Co-Defendant violates Crawford and requires the Co-Defendant to testify.

United States v. Cuong Gia Le, 316 F. Supp. 2d 330 (E.D. Va. 2004) - "where two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand. Crawford and Bruton must be used together. A witness can testify regarding one Defendant confessing (without that Defendant taking the stand) and a limiting instruction can be given that the testimony is to be attributed to one Defendant and not the other. But when co-Defendant's are tried together, Bruton and Crawford require the Co-Defendant to take the stand in order to get a confession in against the non-testifying Co-Defendant. Crawford is in line with the Bruton decision.

Commonwealth v. Brown, 853 A2d 1029; 2004 PA Super 213 (PA. Super. Ct. 2004)- Conviction vacated because redacted confession of co-Defendant that labeled this Defendant "the other guy" was properly admitted, but in closing argument the prosecutor directly named the Defendant in a manner that related to the information contained in the Co-Defendant statement and, therefore, identified "the other guy" to the jury.

United States v. Cromer, 389 F.3d 662 (6^th Cir. Mich. 2004) - "statements of a confidential informant are testimonial in nature and therefore may not be offered by the government to establish the guilt of an accused absent an opportunity for the accused to cross-examine the informant."

Is the statement testimonial?

Is my witness available?

If no, then no Crawford analysis is conducted

If yes, then no Crawford analysis is conducted

If yes, then these must occur:

If no, then is the statement testimonial?

Witness must testify (then other admissible hearsay may be introduced), or

If not testimonial, then no Crawford analysis is conducted (Rules of Evidence and reliability test applied as usual)

Witness be unavailable AND have been subject to cross-examination at a prior time

If testimonial, then these must occur:

Note: Reliability or trustworthiness of the prior statement is not an issue under Crawford (Reliability is a factor under Rules of Evidence)

Can demonstrate that witness is legally unavailable AND was subject to cross-examination at a prior hearing

Note: Reliability or trustworthiness of the prior statement is not an issue under Crawford

US v Brown, 322 F. Supp 2d 101; 2004 US Dist LEXIS 11623 (1^st Cir. D. Mass 2004) - There is no right to "confront" witnesses upon whom police rely in obtaining probable cause.

People v. Cervantes, 118 Cal. App. 4th 162,12 Cal. Rptr. 3d 774 (Cal. App. 2d Dist. 2004) - Three Defendants killed one victim and paralyzed another victim. One Defendant confessed the crime to a witness from whom he sought medical aid from for injuries he suffered during the murder. The witness went to police. The 3 Defendants were in a gang and the witness afraid to testify regarding the statement. The witness did testify regarding the one Defendant's confession in a trial involving the other two Defendants. The Court held that the witness could testify to the statement because the state of the confessing Defendant was a statement against penal interest (FRE 801(d)(2)(a)) and there was no Confrontation clause violation against the two non-confessing Defendants because the statement to the witness was not testimonial. The confession was made to the witness to explain his injuries and to receive medical help, and with reasonable expectation it would not be repeated due to the fact that witness was afraid of Defendant and his gang. Therefore, no Crawford analysis was required.

United States v. Williams, 2004 U.S. App. LEXIS 24605 (9^th Cir. Nev. 2004) - "When defendant learned about a prosecution witness's deposition the day before it was to be held, he did not express a desire to attend. On appeal, defendant claimed he was denied his rights under the Sixth Amendment's Confrontation Clause when the witness was deposed without defendant being present and the government used the videotaped deposition at trial. The court held that, although more than one day's notice of the deposition was preferable, the district court was acting in response to the witness's motion that required the district court to order the witness's deposition and release. The district court did not clearly err in finding that defendant waived his right to be present at the deposition when he failed to appear because it was unlikely that defendant would have appeared had the deposition been delayed, there was an unsuccessful attempt to teleconference with him, and defense counsel attended the deposition. The use of the deposition at trial did not violate the Confrontation Clause because the witness was unavailable for trial and defendant, through defense counsel, had an adequate opportunity to cross-examine the witness at the deposition." No Crawford violation.

United States v. Garcia, 2004 U.S. App. LEXIS 25480 (2^nd Cir NY 2004) - Defendant was convicted and granted a new trial. At the second trial, a key witness who previously testified was unable to be found. The transcript of the prior testimony was admitted into evidence in the second trial. This is not a Crawford violation because the defense had an opportunity to cross-examine the witness at the prior trial and this satisfies the Confrontation Clause.

United States v. Ricks, 96 Fed. Appx. 96, 2004 U.S. App. LEXIS 8628 (PA 2004) - When defense counsel has an opportunity to cross-examine a witness a hearing, but does not object when the Judge cuts short the hearing, there is no Crawford violation.

Jones v. Albaugh, 2004 U.S. Dist. LEXIS 4529 (S.D.N.Y. 2004) - The Court explained that a testimonial statement by a witness is not barred by the Sixth Amendment, from use at a criminal trial, if the witness is unavailable at the time of trial and if the defendant has had a prior opportunity to cross-examine the witness. The Confrontation Clause requires that, where prior testimony is admitted at a later proceeding, the party against whom the testimony is admitted must have had an opportunity to cross-examine the witness at the earlier proceeding sufficient to endow the testimony as a whole with some indicia of reliability; the trier of fact must have a satisfactory basis for evaluating the truth of the prior statement.

State v. Young, 87 P.3d 308 (Kansas 2004) - A witness was unavailable for trial but testified at preliminary hearing. The Defendant was represented by counsel at his preliminary hearing and had an opportunity to cross-examine the witness. Although the Defendant claims that the witnesses statements at the preliminary hearing were inconsistent with statements he made at the crime scene, any inconsistency could have been addressed on cross-examination during the preliminary hearing. The Defendant's counsel did not cross-examination the witness at preliminary examination, but was afforded that opportunity. The Defendant's counsel's failure to cross-examine the witness does not equate to a Confrontation Clause violation and does not bar the preliminary hearing testimony from admission at trial due to unavailability of the witness.

State v. Sherman, 2004 Wash. App. LEXIS 1131 (Wash. Ct. App. 2004) - Defendant represented himself in his first trial and was convicted. In a retrial, Defendant had counsel but a main witness against the defendant was unavailable. The prosecutor admitted the testimony of the unavailable witness from the first trial. Defendant argued a Crawford violation because Defendant represented himself and did not fully develop cross-examination against the witness at the trial trial. The court held that a defendant must simply be afforded the opportunity to cross-examination and the court will not look to the quality of the cross-examination.

People v. Tincher, 2004 Mich. App. LEXIS 1834 (Mich. Ct. of Ap. 2004) - Use of a witnesses prior preliminary examination hearing testimony at trial is proper when witness is unavailable for trial and was subject to prior cross examination.

People v. Fry, 92 P.3d 970, 2004 Colo. LEXIS 529 (Colo. Sup. Ct. 2004) - A witness testified at preliminary hearing and the defense attorney did not cross-examine the witness. Before trial, the witness died. The prosecutor admitted the deceased's witnesses hearing testimony at trial. The Colorado Supreme Court applied Crawford and overturned the conviction on the basis that preliminary hearings in Colorado do not provide an adequate opportunity to cross-examine witnesses. Therefore, Crawford was violation because the prior testimony was not subject to cross-examination. {NOTE: This case is in opposition to other cases addressing this issue and can be cited as relating strictly to Colorado procedures on preliminary hearings.}

United States v. Wilmore, 2004 U.S. App. LEXIS 18021 (9^tn Cir Nev 2004) - The wife of the Defendant testified at grand jury (without cross examination) regarding her husband's robbery of an abortion clinic. Before trial, she informed the prosecutor she would disavow her grand jury testimony. At trial, the wife testified to a limited extent and when asked about whether her husband had a gun, she disavowed her prior testimony about a gun. The prosecutor impeached her with her grand jury testimony. At that point, the wife invoked her 5^th Amendment privilege due to potential perjury charges. The defense attorney was limited by the court in its cross-examination and was not allowed to ask any questions that would require the wife to invoke the 5^th in front of the jury. The court reversed the conviction because the defendant was not afforded an opportunity to cross-examine the wife regarding her grand jury testimony and why her testimony had changed at trial.

People v. Thompson, 349 III. App. 3d 587; 812 NE2d 516; 2004 111. App. LEXIS 740 (111. App. Ct. 2004) - Victim did not testify at trial and there was no determination as to unavailability. Defendant testified and during cross-examination was impeached with a protective order previously obtained by the victim that contained statements of prior abuse. Defendant was convicted for aggravated battery. Use of the prior protective order containing statements by the victim of prior abuse violated Crawford because the victim was not subjected to cross-examination of those statements.

United States v. Hite, 364 F.3d 874 (7th Cir 2004) - Prosecutors still must follow the federal rule of good faith in trying to find a witness in order to successfully argue that the witness is unavailable.

Cooper v. McGrath, 314 F.Supp. 2d 967 (S.D. Cal. 2004) - Prosecutors must exercise due diligence in finding witness before submitting preliminary hearing transcript testimony at trial.

People v. Rolandis G. (In re Rolandis G.), 2004 111. App. LEXIS 1260 (HI App Ct 2004) - "Once a child witness is unable to proceed with his or her testimony, whether that point occurred prior to taking the stand or subsequently, he or she is properly considered unavailable. *** From the standpoint of the defendant's ability to cross-examine the witness, it makes no difference whether he becomes "unavailable" before or after he takes the witness stand."

People v. Martinez, 810 N.E. 2d. 199 (2004) - Witness could not recall a written statement she made after witnessing a crime. Prior inconsistent statement hearsay exception (FRE 801(d)(1)) allowed admission of the written statement as a result of witnesses lapse in memory. No Crawford violation since witness was available for cross examination. "Our Supreme Court consistently has held that judicial opinions announcing new constitutional rules applicable to criminal cases are retroactive to all cases - such as this one - pending on direct review at the time the new constitutional rule is declared." This case can be cited for under PA Rule 803.1 inconsistent statement by witness arguments.

People v. Phan, 2004 Cal. App. Unpub. LEXIS 5047 (Cal. 2004) - Child victim testified at trial concerning statements she made to police officers regarding sexual assault. At trial, child victim had poor recollection regarding police interviews. In a Crawford analysis, the court found Crawford was satisfied because the victim testified and was subject to cross-examination. The fact that the victim had poor memory and was not able to be cross-examined fully did not require reversal. Crawford requirements were satisfied.

People v. T.T. (In re T.T.), 2004 111. App. LEXIS 962 (111 App Ct 2004) - "Respondent was accused of having sexual relations with a seven-year-old girl. During the trial, the alleged victim, who was then nine-years-old, responded to general questions, identified respondent in court, and explained how she was at respondent's home. However, when the questions became more specific about the alleged assault, she stopped answering questions. Respondent contended that the trial court erred in finding that the alleged victim was unavailable to testify, erred in admitting testimonial statements that she gave to a police detective, an Illinois Department of Children and Family Services (DCFS) investigator, and an examining physician, and erred by denying respondent an opportunity to cross-examine her. On appeal, the court found that the trial court properly determined that the alleged victim was unavailable. Further, the alleged victim's statements to the police detective and the DCFS investigator were testimonial, and her statement to the examining physician identifying respondent as the perpetrator was testimonial. Because respondent had no opportunity to cross-examine the alleged victim at trial, the testimonial statements were not admissible."

◙ Does not impact hearsay statements offered by the Defendant (waives 6th Amendment)

Alesi v. Sex Offender Registry Bd., 2004 Mass. Super. LEXIS 516 (Mass Super Ct 2004) - The right to confront witnesses does not apply in civil sex offender proceedings.

People v. Maxwell (In re CM.), 815 NE2d 49; 2004 111. App. LEXIS 985 (111 App Ct 2004) - Crawford or right to confrontation do not apply in civil proceedings under the Juvenile Act.

In re Civil Commitment of G.G.N., 372 NJ Super 562; 854 A2d 936; 2004 N.J. Super. LEXIS 342 (NJ Super Ct App Div 2004) - Civil commitment proceedings under the Sexually Violent Predators Act does not invoke the 6^th Amendment and, therefore, Crawford does not apply.

Young v. United States, 2004 D.C. App. LEXIS 642 (2004) - Crawford does not apply to probation revocation hearings.

Jenkins v. State, 2004 Del. LEXIS 549 (2004) - Sixth Amendment and the right to confront does not apply at probation revocation hearings.

People v. Johnson, 121 Cal. App. 4^th 1409; 18 Cal. Rptr. 3d 230 (Cal App 1^st Dist 2004) - Crawford and 6^th Amendment rights do not apply in probation revocation hearings.

People v. Turley, 2004 Colo. App. LEXIS 1895 (Colo Ct App 2004) - Due process rights of confrontation in probation revocation proceedings arise out of the 14^th Amendment and not the 6^th Amendment as addressed in Crawford. Therefore, Crawford does not apply in probation revocation proceedings.

United States v. Barazza, 318 F. Supp. 2d 1031, 2004 U.S. Dist. LEXIS 9732 (SD Cal 2004) - "The Supreme Court has repeatedly characterized the fight of confrontation in revocation hearings as a due process right. Therefore, the rule of Crawford is inapplicable to supervised release revocation proceedings."

United States v. Aspinall, 2004 U.S. App. LEXIS 23954 (2004) - Crawford and 6^thAmendment rights do not apply in probation revocation hearings.

Ash v. Reilly, 2004 U.S. Dist. LEXIS 24451 (DC Cir 2004) - This Court held that a defendant has the right of confrontation in a federal parole revocation hearing. "The federal courts are split with regard to whether Crawford v. Washington is binding precedent for parole revocation hearings. See United States v.Jarvis, 94 Fed. Appx. 501 (9th Cir. 2004)(holding that the right to confrontation and thus Crawford v. Washington, applied to parole revocation hearings); United States v. Martin, 382 F.3d 840 (8th Cir. 2004)(holding that the Sixth Amendment right to confrontation did not exist in parole revocation hearings); See also United States v. Taveras, 380 F.3d 532 (1st Cir. 2004); See also United States v. Barazza, 318 F. Supp. 2d 1031 (S.D.Cal. 2004). Most recently, the 2nd Circuit held that Crawford v. Washington does not apply to parole revocation hearings because by its text, the Sixth Amendment is limited to "criminal prosecutions." United States v. Aspinall, 2004 U.S. App. LEXIS 23954, 2004 WL 2601081 (2nd Cir. 2004). That Court also cited to Morrissey for the proposition that "'revocation of parole is not part of a criminal prosecution.""

United States v. Leatch, 2004 U.S. App. LEXIS 23273 (5^th Cir TX 2004) - There is no right to confrontation in sentencing hearings and, therefore, Crawford does not apply.

United States v. Reyes, 362 F.3d 536 (8th Cir 2004) - When a statement satisfies the requirements as a co-conspirator statement under Federal Rule of Evidence 801(d)(2)(E), both the Rules of Evidence and the Confrontation Clause allow the government to introduce the statement through any witness who heard the statement, even if the government cannot show that the co-conspirator is unavailable. United States v. Inadi, 475 U.S. 387, 400, 89 L. Ed. 2d 390, 106 S. Ct. 1121 (1986). The Confrontation Clause does not give the defendant the right to cross-examine a person who does not testify at trial and whose statements are introduced under the co-conspirator hearsay exclusion. Under Crawford, co-conspirator statements under 801(d)(2)(E) are non-testimonial and not subject to a Crawford analysis.

State v. Saechao, 2004 Ore. App. LEXIS 1312 (Or Ct App 2004) - A non-testifying codefendant's statements made to a friend during a telephone conversation from the county jail are not testimonial when introduced against the Defendant.

People v. Newland, 775 N.Y.S.2d 308 (2004) - Officer can testify to speaking with a bystander which then resulted in officer taking action that resulted in the location of evidence. This hearsay statement was not admitted for truth, but to show what action the officer took. "We conclude that a brief, informal remark to an officer conducting a field investigation, not made in response to "structured police questioning" should not be considered testimonial, since it "bears little resemblance to the civil-law abuses the Confrontation Clause targeted"."

United States .v. Stone, 222 F.R.D. 334 (ED Tenn 2004) - An expert witness may rely on statements from non-testifying witnesses in testifying to an opinion in court and this does not violate Crawford.

People v. Ruis, 2004 N.Y. App. Div. LEXIS 12552 (NY App Div 2d Dept 2004) - "Here, the investigating officer was permitted to testify that after speaking with an eyewitness who did not testify at trial and obtaining from the eyewitness a photograph of the defendant, the officer investigated further and the defendant subsequently was apprehended in Costa Rica. This testimony was properly admitted for the purpose of explaining the sequence of events leading to the defendant's apprehension" No Crawford violation.

United States v. Trala, 386 F.3d 536 (3^rd Cir DE 2004) - Hearsay statements, not offered for the truth of matter asserted, do not violate Crawford.

United States v. Eberhart, 2004 U.S. App. LEXIS 22445 (7^th Cir 111 2004) - Hearsay statements, not offered for the truth of matter asserted, but rather to prove why an investigation occurred, does not violate Crawford.

Parle v. Runnels, 2004 U.S. App. LEXIS 22621 (9^th Cir Cal 2004) - The Defendant murdered his wife and the wife's diary was admitted into evidence to show the nature of their violent relationship. The diary was admitting into evidence pursuant to California Evidence Code 1370, a hearsay exception that examines the reliability and trustworthiness of the statement. The Court found the diary to be non-testimonial because it was not written in anticipation of litigation.

People v. Moiiterroso, 2004 Cal. LEXIS 11763 (2004) - Dying declarations are non-testimonial do not fall under Crawford.

State v. Nix, 2004 Ohio 5502 (2004) - Dying declarations do not fall under Crawford.

United States v. Hite, 364 F.3d 874 (7^th Cir. 2004) - Defendant offered unreliable hearsay at trial which does not implicate Crawford because defendant proffered the testimony and waived confrontation of the declarant.

People v. McMillian, 2004 Mich. App. LEXIS 1156 (2004 unpub dec) - "defendant argues that his right to confront witnesses was violated when Officer Barbre testified that defendant's friend, Hasan Warlick, stated that the gun belonged to defendant. However, it was defense counsel's questioning of Officer Barbre that led to the complained of testimony. A party waives review of the admission of evidence that he introduced, or that was made relevant by his own placement of a matter in issue."

United States v. Simpson, 2004 U.S. App. LEXIS 26049 (6^th Cir. Tenn 2004) - Crawford and the Confrontation Clause only apply to statements offered againstthe Defendant. Exculpatory statements for the Defendant do not invoke Crawford.

◙ Ohio v Roberts, 448 U.S. 56 (1980) Crawford overruled Roberts and now requires the prosecutor to show unavailability AND that the witness was previously subject to cross-examined by defense counsel in order to admit the hearsay statement.

◙ Idaho v Wright, 497 U.S. 805 (1990) This case relied on Ohio v Roberts. The Crawford Court briefly addressed Wright in the concurring opinion regarding the trustworthy factor, but left hanging whether Wright survives the Crawford decision. If a child testifies and you still want to admit the videotaped forensic interview, Wright can still be argued as valid law regarding the residual hearsay exception analysis and Crawford is satisfied due to the child testifying and being available for cross-examination.

◙ Illinois v White, 502 U.S. 346 (1992) In addressing White, the Crawford court said "the holding [in Wliite] did not address the question whether certain statements, because they were testimonial, had to be

excluded even the witness was unavailable. We "[took] as a given ... that the testimony properly falls within the relevant hearsay exceptions." First, that we apply the Confrontation Clause only to testimonial statements, leaving the remainder to regulation by hearsay law — thus eliminating the over breadth referred to above. Second, that we impose an absolute bar to statements that are testimonial, absent a prior opportunity to cross-examine — thus eliminating the excessive narrowness referred to above. In White, we considered the first proposal and rejected it. Although our analysis in this case casts doubt on that holding, we need not definitively resolve whether it survives our decision today, because Sylvia Crawford's statement is testimonial under any definition. This case does, however, squarely implicate the second proposal." The Crawford Court admitted that the White ruling is "now in tension" with the Crawford ruling and whether the White holding is still valid was left for a later date by the Crawford decision.

Prosecutors are nervous about firmly-rooted hearsay exceptions because these were traditionally held to satisfy the Confrontation Clause because these exceptions contained statements that were so reliable on their face that confrontation or cross-examination of the witness would not provide any other statement or change regarding the statement (i.e., confrontation would be futile). Now that a testimonial versus non-testimonial analysis must be performed, Prosecutors should not take for granted that the firmly-rooted hearsay exceptions can be admitted at trial regardless of whether the declarant testifies.

(Note: There are some exceptions, but a majority of decisions support these exceptions

◙ FRE 801(d)(2)(e) - co-conspirators statements made in furtherance of conspiracy

State v. Rivera, 268 Conn. 351, 844 A.2d 191 (2004) - Defendant confessing a murder to a family member prior to arrest is non-testimonial and Crawford analysis does not apply. Reliability test from Ohio v Roberts applies in this situation.

United States v. Morgan, 2004 U.S. App. LEXIS 20778 (2d Cir NY 2004) - Handwritten letter by a defendant to her boyfriend was not testimonial as she likely did not expect it to be found by the police or used against her at trial. The letter was not testimonial.

People v. Cervantes, 118 Cal. App. 4^th 162; 12 Ca. Prtr. 3d 774 (Cal. App. 2d Dist. 2004)

- The Defendant's confession was made to a witness to explain injuries he received during the murder and to receive medical help, and with reasonable expectation it would not be repeated due to the fact that witness was afraid of Defendant and his gang. This statement was non-testimonial and no Crawford analysis was required.

Globe v. State, 2004 Fla. LEXIS 416, 29 Fla. L. Weekly S 119,29 Fla. L. Weekly S 345 (2004)- Co-defendant admissions by acquiescence or silence do not implicate the Confrontation Clause or Crawford.

In re J. K.W., 2004 Minn. App. LEXIS 783 (Minn. Ct. of Ap. 2004) - Police asked a co-defendant to call the defendant and see if defendant would admit to being involved in phoning in a bomb threat. The Court of Appeals ruled that since co-defendant didn't testify, the transcript of the phone call could not come in to evidence since the Co-defendant was not subject to cross examination. {NOTE: This Court did not state how the initial transcript was permitted into court, but it appears that this is a statement by party opponent hearsay exception.}

People v. Hayes, 2004 Mich. App. LEXIS 2500 (Mich Ct App 2004) - Statements made by a defendant in jail to another inmate are not testimonial so long as the inmate is not acting as a governmental agent.

People v. Cervantes, 118 Cal. App. 4th 162,12 Cal. Rptr. 3d 774 (Cal. App. 2d Dist. 2004) - Three Defendants killed one victim and paralyzed another victim. One Defendant confessed the crime to a witness from whom he sought medical aid from for injuries he suffered during the murder. The witness went to police. The 3 Defendants were in a gang and the witness afraid to testify regarding the statement. The witness did testify regarding the one Defendant's confession in a trial involving the other two Defendants. The Court held that the witness could testify to the statement because the state of the confessing Defendant was a statement against penal interest (FRE 801 (d)(2)(a)) and there was no Confrontation clause violation against the two non-confessing Defendants because the statement to the witness was not testimonial. The confession was made to the witness to explain his injuries and to receive medical help, and with reasonable expectation it would not be repeated due to the fact that witness was afraid of Defendant and his gang. Therefore, no Crawford analysis was required.

Wiggins v. State, 2004 Tex. App. LEXIS 10267 (2004) - Co-conspirator statements made in furtherance of the conspiracy are not subject to a Crawford analysis if the witnesses are unavailable at trial.

United States v. Robinson, 367 F.3d 278 (5^th Cir Tex. 2004) - Crawford does not undermine 801(d)(2)(E) co-conspirator statements because those statements are not considered hearsay, are non-testimonial statements and, therefore, do not impact Confrontation Clause issues. Therefore, Crawford analysis not needed and co-conspirator need not take the stand and be subject to cross-examination.

United States v. Cozzo, 2004 U.S. Dist. LEXIS 7391 (7th Cir, N.D. Ill 2004) -

Surveillance tapes played at trial containing conversations between co-conspirators are not in violation of Crawford because they are co-conspirator statements made in furtherance of the conspiracy and, therefore, are not excludable under Crawford.

United States v. Reyes, 362 F.3d 536 (8^th Cir. 2004) ~ When a statement satisfies the requirements for a co-conspirator statement under Federal Rule of Evidence 801, both the Rules of Evidence and the Confrontation Clause allow the government to introduce the statement through a witness who heard the statement, even if the government cannot show that the co-conspirator is unavailable. See, United States v. Inadi, 475 U.S. 387,400, 89 L. Ed. 2d 390, 106 S. Ct. 1121 (1986). In short, the Confrontation Clause does not give the defendant the right to cross-examine a person who does not testify at trial and whose statements are introduced under the co-conspirator hearsay exclusion.

Llaca v Duncan, 2004 U.S. Dist. LEXIS 7916 (S.D.N.Y. 2004) - The Crawford Court did not define the term "nontestimonial," but it did specify that statements in furtherance of a conspiracy are hearsay statements "that by their nature [are] not testimonial." Consequently, the Crawford decision has no bearing on the instant claim.

Roy v Coplan, 2004 DNH 56, 2004 U.S. Dist. LEXIS 4892 (D.N.H. 2004) - A statement from a non-testifying co-conspirator cannot be introduced at trial against other Defendants unless that co-conspirator testifies and is subject to cross-examination.

United States v. Griggs, 2004 U.S. Dist. LEXIS 23695 (SDNY 2004) - "The government seeks to introduce testimony by a police officer, summoned to the scene from the police precinct across the street, who heard the statement "Gun! Gun! He's got a gun!" and observed the declarant gesture at the defendant to identify the person to whom his statement had referred. The government has indicated that this witness has not been found by government investigators. The government seeks to introduce this testimony pursuant to the hearsay exceptions for either excited utterances or present sense impressions. Although the Crawford court did not provide a definition for what constitutes a "testimonial" statement, the Second Circuit has subsequently stated that a declarant's statements are testimonial if they are "knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used

in future judicial proceedings." Therefore, these statements fall within both hearsay exceptions and are not testimonial.

State v. Meeks, 88 P.3d 789 (Kan. 2004) - Statement by shooting victim to police officer "Meeks shot me" and prosecutor admitted statement of now dead victim under present sense impression hearsay exception. "In the instant case, Officer Hall was arguably conducting an interrogation when he asked Green if he knew who shot him, thus making the response testimonial. Moreover, Meeks was not given the opportunity to confront Green through cross-examination because Green died before testifying at trial. We need not determine whether the response was testimonial or not, however, because we hold that Meeks forfeited his right to confrontation by killing the witness, Green." Therefore, this was admissible hearsay as a present sense impression.

People v. West, 2004 111. App. LEXIS 1536 (III App Ct 2004) - The victim was kidnapped, robbed and raped, but was murdered prior to trial. Immediately after the crimes, the victim ran to a house and the police were called. Although statements made by the victim to police officers when being questioned at the hospital were deemed testimonial and excluded on appeal pursuant to Crawford, the appeals court upheld the admission of statements made by the victim to an officer who arrived at the house when the victim was calling for medical help. The court held that "the questions posed by the officer were preliminary in nature and for the purpose of attending to [the victim's] medical concerns, not for the purpose of producing evidence in anticipation of a potential criminal prosecution." Further, statements made to an ER nurse and doctor of the cause of her symptoms and pain were held to be non-testimonial and properly admitted; but statements concerning identity of the assailants were deemed testimonial. As to statements made to the 911 operator, the court held "we find that those statements made to the 911 dispatcher concerning the nature of the alleged attack, [the victim's] medical needs, and her age and location are not testimonial in nature, and were properly admitted at trial. These statements were given immediately after [the victim] was brutally assaulted and in a state of shock for the purpose of requesting medical and police assistance. Further, the dispatcher's questions concerning what was wrong, whether [the victim] was in need of an ambulance, what her age was, and where she was located were posed in order to gather information about the situation and to secure medical attention for her, not to produce evidence in anticipation of a potential criminal prosecution. However, those statements made by [the victim] which described her vehicle, the direction in which her assailants fled, and the items of personal property they took are testimonial in nature. These statements were made in response to questions posed by the dispatcher for the stated purpose of involving the police. As such, [the victim's] responses are comparable to those obtained through official questioning for the purpose of producing evidence in anticipation of a potential criminal proceeding, and their use at trial to secure the defendant's conviction implicates the central concerns underlying the confrontation clause. Accordingly, we find that the portion of [the victim's] statement to the dispatcher which described her vehicle, the direction in which her assailants fled, and the items of personal property they took are testimonial in nature, and their admission at trial violated the defendant's right of confrontation.

Wilson v. State, 2004 Tex. App. LEXIS 9874 (Tex App Ft Worth 2004) - "A few days after the robbery, a police officer saw a car that matched the description given by the victim. Defendant, the driver, matched the physical description given by the victim. The officer told defendant to exit the car, but defendant took off instead. The car eventually came to a stop, and defendant and two others took off running through a field. Defendant's girlfriend approached the officers and told police defendant's initials and gave them his wallet. The court held that the girlfriend's statements were nontestimonial and that Crawford did not apply. She initiated the interaction with the officers, her statements were made in the course of her inquiring about her car and the missing occupants, and she was not responding to tactically structured police questioning. The trial court properly admitted the statements [as excited utterances]. The officers testified that the girlfriend seemed upset and nervous and looked like she was about to cry. A reasonable person could conclude that she made the statements while under stress, fear, or excitement from seeing her car wrecked, abandoned, and surrounded by police officers, knowing that she had lent the car to her boyfriend."

State v. Nelson, 2004 Ohio 6153 (2004) - Admission of a 911 tape having the victim as caller on the tape was nontestimonial and did not violate Crawford when the victim was unavailable for trial.

State v. Powers, 2004 Wash. App. LEXIS 2451 (2004) - "The court held that the trial court, on a case-by-case basis, could best assess the proposed admission of a 911 recording as testimonial or nontestimonial and whether the statement originated from interrogation. Despite the seriousness of defendant's alleged conduct, the victim's call was not part of the criminal incident itself or a request for help entitling the State to prove their case without affording defendant the opportunity to cross-examine the victim, a right case law protected. The record showed that the victim called 911 to report defendant's violation of the order and described him to assist in his apprehension, rather than to protect herself from his return. Thus, her statements were testimonial and were erroneously admitted at trial when she became unavailable. Because the 911 tape was the only evidence establishing the corpus delicti, without it, defendant's statements to police were inadmissible."

People v. Victors, 2004 111. App. LEXIS 1373 (111 App Ct 2004) - The victim of an assault made out-of-court statements to a police officer at the scene. Before making these statements, the victim had previously spoken with another officer for about 5 minutes. At trial, the victim did not testify and the court admitted the statements to the officer as excited utterances. On appeal, the court found the statements were not excited utterances due to the intervening interview by the first office and, therefore, declared the statements to the 2^ndofficer to be testimonial and required the victim to testify at trial.

Lopez v. State, 2004 Fla. App. LEXIS 17317 (Fla Dist Ct App 1^st Div 2004) - Police officers were dispatched and located the victim of an alleged carjacking. The officer asked the victim what happened and the victim, nervous and upset, told the officer he was abducted at gunpoint and then pointed to the defendant who was standing nearby. A short time later, the victim told the officer that the gun was still located in his car. The victim could not be located for trial and the prosecutor admitted the statements as excited utterances. On appeal, the court affirmed that the statements were excited utterances but that there cannot be a blanket rule that all excited utterances are "automatically excluded from the class of testimonial statements." The court found "these statements were not made to a person in authority for the purpose of accusing someone, or in the words of the Supreme Court, to "bear testimony" against someone. In contrast, a startled person who identifies a suspect in a statement made to a police officer at the scene of a crime surely knows that the statement is a form of accusation that will be used against the suspect. In this situation, the statement does not lose its character as a testimonial statement merely because the declarant was excited at the time it was made. These principles lead us to conclude that the statement at issue was a testimonial statement. While it is true that Ruiz was nervous and speaking rapidly, he surely must have expected that the statement he made to Officer Gaston might be used in court against the defendant. He knew that Gaston was a policeman who was on the scene in an official capacity to investigate a reported crime. Even in his excitement, Ruiz knew that he was making a formal report of the incident and that his report would be used against the defendant."

Rogers v. State, 814 N.E.2d 695 (Ind Ct App 2004) - At the scene, a police officer took a statement from the victim. The victim was injured (cut on the forehead that was bleeding), visibly upset and shaking all over and did not appear to be aware of what was going on around him. The victim did give a statement to the officer identifying his assailant and demeanor. The court found the statement by the victim to be excited utterances and not testimonial. The very concept of an excited utterance (a declaration from one who has recently suffered an overpowering experience is likely to be truthful) is such that it is difficult to perceive how such a statement could ever be "testimonial.

State v. Orndorff, 2004 Wash. App. LEXIS 1789 (2004) - "Defendants entered the victim's home and threatened two children with guns while looking for the victim. They further struck the victim with a rifle, causing profuse bleeding. *** Coble's excited utterance fits into none of these categories. It was not a declaration or affirmation made to establish or prove some fact; it was not prior testimony or a statement given in response to police questioning; and Coble had no reason to expect that her statement would be used prosecutorially. Rather, Coble's statement was a spontaneous declaration made in response to the stressful incident she was experiencing. We hold that Coble's excited utterance was not testimonial ..."

State v. Barnes, 2004 Me. LEXIS 124 (2004) - "Defendant argued that the admission of his mother's statements to a police officer following an earlier alleged assault constituted a violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution. Specifically, the issue was whether the statements were "testimonial" in nature. The state supreme court concluded that the admission of the statements did not violate the Confrontation Clause for several reasons. First, the police did not seek the mother out. She went to the police station on her own. Second, her statements were made when she was still under the stress of the alleged assault. Third, she was not responding to tactically structured police questioning, but was instead seeking safety and aid. The police were not questioning her regarding known criminal activity. Thus, the interaction between defendant's mother and the officer was not structured police interrogation triggering the cross-examination requirement of the Confrontation Clause. Nor did the victim's words in any other way constitute a "testimonial" statement. Therefore, it was not obvious error for the trial court to admit the officer's testimony."

People v. Moscat, 777 N.Y.S.2d 875 (N.Y. Sup. Ct. 2004) - "the Court denies the motion because the 911 call here is not "testimonial" in nature as the term "testimonial" is used in Crawford." "It is generated not by the desire of the prosecution or the police to seek evidence against a particular suspect; rather, the 911 call has its genesis in the urgent desire of a citizen to be rescued from immediate peril." "The 911 call — usually, a hurried and panicked conversation between an injured victim and a police telephone operator — is simply not equivalent to a formal pretrial examination by a Justice of the Peace in Reformation England. If anything, it is the electronically augmented equivalent of a loud cry for help." "Moreover, a 911 call can usually be seen as part of the criminal incident itself, rather than as part of the prosecution that follows. Many 911 calls are made while an assault or homicide is still in progress. Most other 911 calls are made in the immediate aftermath of the crime. Indeed, the reason why a 911 call can qualify as an "excited utterance" exempt from the rules of evidence barring hearsay is that very little time has passed between the exciting event itself and the call for help; the 911 call qualifies as an excited utterance precisely because there has been no opportunity for the caller to reflect and falsify her (or his) account of events." (NOTE: On 11-26-04, the underlying facts regarding the 911 caller and the time of call came in to question as not being accurate in this opinion. The 911 caller was a neighbor, not the victim, and the call was made 9 hours after the alleged crime. The Judge writing the opinion is standing behind his reasoning, but attorneys should be aware that the facts outlined in the decision are not wholly accurate.)

People v. Cortes, 2004 N.Y. Misc. LEXIS 663 (2004) - 911 tape is testimonial and the caller must be present at trial in order to admit the tape. "The first emergency call on the 911 tape was made by a male observer who could not be located by the prosecution and was therefore unavailable for cross-examination at trial. *** The 911 operator asked questions about the shooter's location, description, and direction of movement, all necessary for the police to conduct their investigation. *** The tape shows that the caller supplied information to the 911 operator in response to the operator's questions and that he also gave relevant information before the question was asked. *** The circumstances of some 911 calls, particularly those reporting a crime, are within the definition of interrogation. *** The police department collects information about crimes through callers to 911 who either are aware of the needed information because they have been told by public communications or because

they are specifically asked by operators. The method for taking the calls falls within the definition of interrogation. *** The admission of 911 calls in New York is premised on the theory of spontaneous declaration, excited utterance or present sense impression. When a 911 call is made to report a crime and supply information about the circumstances and the people involved, the purpose of the information is for investigation, prosecution, and potential use at a judicial proceeding; it makes no difference what the caller believes."

People v. Caudillo, 2004 Cal. App. LEXIS 1691 (Cal App 6^th Dist 2004) - "the caller made the call immediately after witnessing the shooting. The caller could still see the Lincoln nearby. Although she had left the scene by the end of the call, she indicated that she was still afraid by stating that she did not want to give her cell phone number and did not want to "drive back by." She was clearly excited and stressed by the incident." *** "First, the 911 call was not" 'ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.'" The 911 call was initiated by a witness to a shooting. The declarant was speaking to a dispatcher who was attempting to obtain information to assist the police in responding appropriately, by providing assistance to any victims and apprehending the gunman to prevent any further violence. The call in this case stands in stark contrast to the statement in Crawford, which was made during a formal police interrogation after both the defendant and the declarant had been arrested. Here, the call occurred before any arrests were even made. Second, the 911 call cannot be described as an " 'extrajudicial statement[] ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.'" The 911 call was an informal report of a recent shooting; its purpose was to advise the police of the situation so that they could take-appropriate action to protect the community. Finally, the 911 call was not " 'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" This was a classic 911 call, made immediately after a crime was committed. The caller was simply requesting help from the police by describing what she saw without thinking about whether her statements would be used at a later trial. In conclusion, we do not believe that a 911 call such as the one admitted in this case was within the contemplation of the Crawford court when it concluded that the Confrontation Clause of the Sixth Amendment bars introduction of "testimonial" statements. The call here was initiated by a citizen witness to a crime; it was not initiated by the government or an agent of the government. The details provided by the caller were elicited in order to facilitate appropriate police response, not to provide evidence to be used at a later trial. Under the circumstances in this case, we believe that the admission of the 911 call did not violate the Confrontation Clause.

State v. Wright, 686 N.W.2d 295 (Minn Ct App 2004) - 911 tape of frantic victims requesting help was held non-testimonial and an excited utterance.

State v. Forrest, 596 S,E.2d 22 (N.C. Ct. App. 2004) - spontaneous statements by victim made after being rescued from a kidnapping and made to non-questioning police officer were excited utterances and non-testimonial. No Crawford analysis needed.

People v. Rivera, 778 N.Y.S.2d 28 (N.Y. App. Div. 1^st Dept 2004) - Excited utterance hearsay exception is not testimonial. "The court properly admitted the victim's girlfriend's telephoned statement to the victim's sister, identifying defendant as the assailant, under the excited utterance exception to the hearsay rule. This declaration, made within minutes of the stabbing by a crying, screaming declarant, was clearly made under the continuing stress and excitement caused by the startling event, and was not made under the impetus of studied reflection"

Leavitt v. Arave, 371 F.2d 663 (9^th Cir. Idaho 2004) - The victim was brutally murdered by an intruder in her home. The night before the murder, she frantically called 911 regarding a prowler trying to enter her home and she named the defendant as the prowler. "Among other things, she said that she thought the prowler was Leavitt, because he had tried to talk himself into her home earlier that day, but she had refused him entry. Leavitt claims that the admission of the hearsay testimony violated his rights" *** "The Idaho courts relied upon the state's residual exception, which is not firmly rooted, but the evidence could properly have come in under the excited utterance exception, which is. See Wright, 497 U.S. at 817, 820, 110 S. Ct. at 3147, 3149. We have considered the circumstances and have no doubt that the victim was speaking while under the baleful influence of an exceedingly stressful event — the attempt by an intruder to break into her home. Nor do we doubt that she lacked the time or the incentive to reflect upon and confabulate a story. Thus, the evidence properly came in as an excited utterance. There was no violation of Leavitt's constitutional rights." *** "We do not think that Elg's statements to the police she called to her home fall within the compass of these examples. Elg, not the police, initiated their interaction. She was in no way being interrogated by them but instead sought their help in ending a frightening intrusion into her home. Thus, we do not believe that the admission of her hearsay statements against Leavitt implicate "the principal evil at which the Confrontation Clause was directed[.] "

People v. Corella, 122 Cal. App. 4th 461 (Cal App 2d Dist 2004) - Defendant assaulted his wife and she called 911 and reported the assault. She also repeated the accusation to police and medical personnel. At preliminary hearing, the victim recanted her accusation and admitted to giving a false statement. The victim did not testify at trial and her statements to the police were admitted. The conviction was upheld on appeal as not violating Crawford because the victim initiated the 911 call, not the police. Moreover, the victim provided spontaneous statements describing the assault and this did not rise to level of interrogation. Preliminary questions by a police office at the scene is not an interrogation. Although the spontaneous statement were admitted at trial, these statements were made without reflection or deliberation and could not have been made in contemplation of testimonial use at trial.

State v. Jones, 2004 Del. Super. LEXIS 407 (2004) - The defendant's girlfriend, who did was unavailable to testify at trial, informed police that a co-conspirator to the murder, who worked as a drug dealer for one of the victims, planned to rob the victim because the victim would not pay the co-conspirator. The girlfriend said that the co-conspirator intended to shoot the victim so that the victim could not identify the robbers. The court admitted the statements of the co-conspirator's intent to commit murder as the co-conspirator's existing state of mind. The court held these statements were non-testimonial because they were made to an acquaintance and not to an arm of the government.

United States v. Dorman, 2004 U.S. App. LEXIS 14993 (6^tn Cir. Ky 2004) - A witness testified as to a 803(3) hearsay statement regarding state of mind and future intent. The court held this was non-testimonial and no Crawford analysis was needed under the rules of evdidence.

People v. Becerra, 2004 Cal. App. Unpub. LEXIS 2692 and 3702 (2004) - When child stated to her mom "my head hurts" and child dies as a result of injuries, that statement is non-testimonial state of mind hearsay exception and can be admitted at trial without Crawford analysis.

People v. Williams, 2004 Mich. App. LEXIS 1217 (2004 unpub dec) - deceased victim's statements of fear for her life from Defendant to her mom and brother were admissible as state of mind exceptions and non-testimonial and not subject to Crawford analysis.

Horton v. Allen, 370 F.3d 75 (1^st Cir. Mass 2004) - State of mind statements made by coconspirator to a witness are not testimonial and not subject to Crawford analysis since the statement was made without the expectation of being used at trial.

Stoddard v. State, 157 Md. App. 247, 850 A.2d 406, 2004 Md. App. LEXIS 91 (Md. Ct. Spec. App 2004) - This case could be deemed an 803(3) state of mind case, but the court did not analysis it under that rule, but rather under Rule 801. "An eighteen-month-old child's fearful question to her mother, "Is Erik going to get me?," is clearly not hearsay under Maryland Rule 5-801 and Federal Rule of Evidence 801. It might once have been deemed an implied assertion under Wright v. Tatham. It does not qualify as hearsay today. Applying the analytic tools developed to measure conduct and utterances against the new rules, it is, as hearsay, twice bereft. A little girl's fearful question to her mother was not intended by her to be a communicative assertion of any fact. It was, pure and simple, a frightened request for information. "Am I safe?" It was not assertive. For that reason alone, it was not hearsay."

Evans v. Luebbers, 371 F.3d 438 (8^th Cir. MO 2004) - Defendant was convicted of murdering his wife. Statements made by the deceased victim to others were admitted into evidence under the state of mind hearsay exception. "The trial court admitted statements suggesting that Sheilah Evans was scared of the petitioner (e.g., "I'll be like another Nicole Simpson." Trial Tr. at 486; "This might be another O.J. Simpson case." Trial Tr. at 341), that Sheilah Evans was verbally and physically abused by the petitioner, that Sheilah Evans intended to divorce the petitioner, and that Sheilah Evans obtained a protective order against the petitioner." The Court found that Crawford did not apply in this case because the deceased victim's statements were non-testimonial and fell within the hearsay exception for state of mind.

People v. West, 2004 111. App. LEXIS 1536 (111 App Ct 2004) - cited above in Excited Utterances

State v. Vaught, 268 Neb. 316 (Neb. Sup. Ct. 2004) - This case involved a 4-yr old victim of sexual abuse who informed a physician during a medical examine about the identity of the defendant. "We believe on the facts of this case that the victim's statement to the doctor was not a "testimonial" statement under Crawford. As discussed above, the victim's identification of Vaught as the perpetrator was a statement made for the purpose of medical diagnosis or treatment. In the present case, the victim was taken to the hospital by her family to be examined and the only evidence regarding the purpose of the medical examination, including the information regarding the cause of the symptoms, was to obtain medical treatment. There was no indication of a purpose to develop testimony for trial, nor was there an indication of government involvement in the initiation or course of the examination. {NOTE: It does not appear that the victim testified at any hearing in this case.}

People v. Cage, 120 Cal. App. 4th 770 (2004) - "During a fight between defendant and her 15-year-old son John F., John sustained a long and nasty cut down his neck. John made three successive hearsay statements — to a police officer at the hospital, to a doctor at the hospital, and to the same police officer at the police station — each to the effect that defendant had picked up a piece of glass and deliberately slashed him with it." The court held "The statement to the police officer at the police station was clearly testimonial. The statement to the doctor at the hospital was just as clearly nontestimonial. We will hold that the statement to the police officer at the hospital was not testimonial because the interview was not sufficiently analogous to a pretrial examination by a justice of the peace; among other things, the police had not yet focused on a crime or a suspect, there was no structured questioning, and the interview was informal and unrecorded.

People v. Cervantes, 118 Cal. App. 4th 162,12 Cal. Rptr. 3d 774 (Cal. App. 2d Dist. 2004) - Three Defendants killed one victim and paralyzed another victim. One Defendant confessed the crime to a witness from whom he sought medical aid from for injuries he suffered during the murder. The witness went to police. The 3 Defendants were in a gang and the witness afraid to testify regarding the statement. The witness did testify regarding the one Defendant's confession in a trial involving the other two Defendants. The Court held that the witness could testify to the statement because the state of the confessing Defendant was a statement against penal interest (FRE 801(d)(2)(a)) and there was no Confrontation clause violation against the two non-confessing Defendants because the statement to the witness was not testimonial. The confession was made to the witness to explain his injuries and to receive medical help, and with reasonable expectation it would not be repeated due to the fact that witness was afraid of Defendant and his gang. Therefore, no Crawford analysis was required.

State v. McKinney, 2004 Ohio 5518 (2004) - The business record exception does not fall under Crawford.

Smith v. State, 2004 Ala. Crim. App. LEXIS 93 (Ala Crim App 2004) - Autopsy reports are business records and not testimonial so Crawford analysis does not apply. It is harmless error if prosecutor does not call the medical examiner to the stand who performed the autopsy but rather calls another medical examiner in the office. "By use of certified copies of business documents and official records under special statutes providing for such, it could

be conceivable that the State could prove some offenses without the necessity of calling any witnesses at all, except for the guarantees of our state and federal constitutions. The right of a defendant to be confronted by witnesses against him, includes the right of cross examination."

United States v. Gutierrez-Gonzales, 2004 U.S. App. LEXIS 21038 (5^th Cir TX 2004) -

Because the items in Gonzales' immigration file are nontestimonial, the Confrontation Clause does not bar their admission. Moreover, the Supreme Court noted that business records are "statements that by their nature are not testimonial" and therefore do not [*6] run afoul of Crawford.

People v. Shreck, 2004 Colo. App. LEXIS 1712 (Colo Ct App 2004) - Court records showing a defendant's prior criminal convictions are business records and not subject to Crawford.

United States v. Avants, 367 F.3d 433 (5^th Cir. Mass. 2004) -1966 murder that was tried in state court in 1996 (acquittal) and then tried in federal court in 1999. The main witness in the 1966 state trial died prior to the 1999 federal trial, but his 1966 trial testimony was proper to admit at 1999 trial. This met the Crawford test of unavailability and prior opportunity to cross-examine the witness.

Gutierrez v. State, 2004 Tex. App. LEXIS 9897 (Tex App Houston 14^th Div 2004) - A

non-testifying Co-Defendant gave a videotaped confession to the police regarding the involvement of the defendant in stealing drugs. At trial, the videotape was played. Although statements against penal interests generally do not violate Crawford, this videotaped statement did violate Crawford because the statement was given to the police.

People v. Deshazo, 469 Mich. 1036 (2004) - "a non-testifying co-defendant told the witness that defendants hired him to kill the victim, is admissible as a statement against penal interest under MRE 804(b)(3). The co-defendant's statement bears adequate indicia of reliability, in that it was voluntarily given to a friend or confederate, and was uttered spontaneously without prompting or inquiry. The statement was not made to law enforcement officers." This is a non-testimonial statement and not subject to Crawford analysis.

People v. Carried, 3 Misc. 3d 870, 778 N.Y.S.2d 854, 2004 N.Y. Misc. LEXIS 418 (2004)- "based upon the analysis of Crawford and the facts of the instant matter, this court holds that the proposed use by the People of the plea minutes of the co-defendants is testimonial in nature. Therefore, the use of the minutes as proposed by the People, without the co-defendants being called as witnesses, would be violative of the Confrontation Clause. Accordingly, the plea minutes may not be used against defendant Carrieri at trial even though they may well be an exception to the hearsay rule as a Declaration against Penal Interest."

US v. Jones, 371 F.3d 363, 2004 U.S. App. LEXIS 11314 (7^th Cir. Ind. 2004) - The Bruton line of cases deals with situations in which the confession of one defendant is offered at a joint trial where the statement is redacted to omit any explicit reference to the co-defendant

and the jury is instructed to consider the statement only against the declarant. Id. Here, Rock, the declarant, was not present at the trial, so his confession was obviously intended to be used against Jones. Jones never had an opportunity to cross-examine Rock and thus, under Crawford, no part of Rock's confession should have been allowed into evidence.

Gutierrez v. Dorsey, 2004 U.S. App. LEXIS 13987 (10th Cir. N.M. 2004) - A witness testified that her good friend, who was the girlfriend of the defendant, told her that she had been with the defendant, had planned the robbery, and had driven to the service station where the robbery took place with the defendant and others and that the defendant had a knife. The trial court admitted that testimony under New Mexico Rule of Evidence 11-804(B)(4) (hearsay exception for statements against interest) and there was no Crawford violation since the statement was non-testimonial.

United States v. Vogel, 2004-1 Trade Cas. (CCH) P74,362 (USDC Indiana) - Where co-defendant makes a statement implicating other co-defendants and invokes 5th Amendment at trial and does not testify, Crawford bars admission of the statement under FRE 804(b)(3) (statement against interest) because this violates the right to confront by the other co-defendants.

◙ Per Crawford, confrontation right may be extinguished on equitable grounds

When a defendant's crime causes the victim to be unavailable (due to trauma, injuries, or fear), it is proper to argue that the defendant forfeited the right to confront the witness at trial due to wrongdoing. Moreover, when the defendant threatens the victim to not disclose the crime or identity of defendant, threatens family members, causes the victim to flee the area, or procures the victim to keep quiet through the use of money, gifts or other tactics, a successful argument can also be made regarding forfeiture of the right to confront.

Post Traumatic Stress Disorder, Acute Stress Disorder or Traumatic Stress Disorder from the crime may be an argument to avoid the victim (especially a child) from having to testify. In child abuse cases, this may allow for the admission of a forensic video interview without the child having to testify.

Standard of Proof not ruled on by US Supreme Court. A majority of federal circuits use the preponderance of evidence standard, but some states have applied the clear and convincing standard..

People v. Moore, 2004 Colo. App. LEXIS 1354 (Colo. Ct. Ap. 2004) - Defendant stabbed his wife and while she was in the ambulance and in an excited state of mind, she informed a police officer that her husband stabbed her. The victim ultimately died from the stabbing. The court ruled that the defendant's wrongdoing in killing his wife forfeited his right to cross-examine her regarding her excited utterance to the police officer and the statement was allowed into evidence.

State v. Meeks, 277 Kan. 609 (2004)- "In the instant case, Officer Hall was arguably conducting an interrogation when he asked Green if he knew who shot him, thus making the response testimonial. Moreover, Meeks was not given the opportunity to confront Green through cross-examination because Green died before testifying at trial. We need not determine whether the response was testimonial or not, however, because we hold that Meeks forfeited his right to confrontation by killing the witness, Green."

Francis v. Duncan, 2004 U.S. Dist. LEXIS 16670 (2nd Cir SDNY 2004)- Defendant telephoned death threats to his robbery victim that caused her to not testify at trial. The court ruled that the Defendant forfeited his right to confront the victim and the victim's grand jury testimony was admissible at trial, as was her statements regarding fear of dying.

People v Jiles, #EO34087 (Cal Ct App 4^th Dist Div 2, 2004) - Defendant admitted to stabbing his wife and ultimately resulted in her death. At the scene, the victim identified the defendant as her assailant. On appeal, the court did not address whether a dying declaration would be a non-testimonial statement for purposes of Crawford but instead focused on the forfeiture provision to confirm proper admission at trial of the statement.

People v. Giles, 123 Cal. App. 4th 475 (Cal App 2d 2004) - Statements of the deceased victim, told to a police officer in a previous altercation, were admitted during the murder trial. The court found that the defendant forfeited his right to cross examine the victim regarding the statements previously made due to his admitted wrongdoing in killing the victim. The court applied a clear and convincing standard.

New Jersey v Sheppard, 484 A.2d 1330 (N.J. Super. Ct. Law Div. 1984) - Prosecutor can use acts during the commission of the crime to show procurement by Defendant to induce unavailability of victim or witness. If victim or witness refuses to testify, cannot remember, becomes non-responsive during questioning, this argument should be made to show that Defendant forfeited Confrontation right due to wrong doing .

◙ Is a Forensic Interview testimonial? Courts are deciding yes based primarily on the status of the interviewer (governmental agent)

◙ Are young children (below the age of 8) likely to comprehend that a forensic interview may be used at trial (i.e., reasonable person standard)?

◙ Are older children able to understand that a forensic interview may be used for testimonial purposes?

◙ Is it fair and equitable to apply Crawford when the defendant's conduct made the child unavailable for trial?

◙ Is it fair and equitable to apply Crawford when the court has found the child to be incompetent to testify at trial and prohibits the child from testifying?

◙ Remember that the status of interviewers (i.e., police officers or state CPS workers) will be considered by the court

◙ Truth/lie questions in a forensic interview relate to an oath for purposes of testifying in court and should be discouraged from use during an interview

◙ Statements pursuant to Tender Years may be testimonial depending on the nature of the disclosure (i.e., unexpected disclosure to a caregiver -vs-disclosure during a forensic interview)

◙ Spontaneous statements by children to caregivers are non-testimonial so far

◙ Testimony by closed-circuit television per Maryland v Craig does not violate Crawford.

Forensic interviews are not primarily for the purpose of criminal prosecution A trained forensic interviewer will interview a child to see if any abuse/neglect occurred, to determine who the assailant is, to determine whether the child needs medical treatment or psychological treatment, to give information to CPS regarding removal of the child from the home and safety issues regarding the home. In the "Child First Doctrine," the child always comes first in a forensic interview (not getting evidence, not getting a disclosure, and not getting a prosecutable case) and adhering to this doctrine will provide another strong argument that forensic interviews are not testimonial. Moreover, young children will not objectively understand that their statement could potentially be later used in a court proceeding. Most children do not understand what court is and, therefore, cannot understand that statements made in a forensic interview could be used in court.

Be sure to educate forensic interviewers regarding the problems with incorporation a truth/lie protocol during the interview, as well as to never ask a child what they want to have happen to the assailant (this question brings to the attention of the child that court action may occur as a result of their forensic interview). If a truth/lie component is used during a forensic interview of a child, this may provide defense counsel with sufficient argument that the forensic interview was actually conducted for purposes of litigation or prosecution. Each jurisdiction should decide how to handle a truth/lie component in a forensic interview.

If a state Tender Years statute allows for the admission of certain child hearsay statements without the child having to take the stand, that portion of the statute may be in violation of Crawford if the statement to admit at trial is considered testimonial. However, if the Tender Years statute also allows for the admission of these child hearsay statements if the child testifies, then the statute satisfies Crawford.

When children testifies via closed-circuit television (pursuant to analysis under the state's statute), a Crawford analysis is not required because the child is present in court for purposes of cross-examination and confrontation by the defendant.

State v. Mack, 337 Ore. 586 (2004) - " A social worker interviewed the victim's three-year-old brother who was in the house when the victim died. The interviews were videotaped. Defendant argued that under the Confrontation Clause of the Sixth Amendment, the statements were testimonial and thus inadmissible. The court affirmed, holding that under Crawford, a United States Supreme Court case that was decided five days after the State filed its motion in limine to determine admissibility, the child's statements to the social worker fell within the core class of testimonial evidence that Crawford identified. There could be little doubt that if the police officers had conducted the interviews, the resulting statements would be testimonial. The social worker was serving as a proxy for the police. She took over the first interview when the interviewing officer was unable to establish a dialogue with the child and she continued in that role in the second interview and elicited statements from the child so that police officers could videotape them for use in a criminal proceeding. Under Crawford, admitting the child's statements to the social worker would violate the Confrontation Clause."

People v. Argomaniz-Ramirez, 2004 Colo. LEXIS 981 (2004) - "prior recorded statements made by children to law enforcement officials may be introduced into evidence when the children testify at trial."

Somervell v. State, 29 Fla. L. Weekly D 1739 (Fla. Dist. Ct. App. 5th Dist 2004) - A

videotaped forensic interview, conducted by a police officer, of the 8 year old victim was properly admitted at trial after the child victim had already testified. This did not violate the confrontation clause and a Crawford hearing was not necessary.

Snowden v. State, 156 Md. App. 139, 846 A.2d 36 (2004) - "We are persuaded that the statements testified to by Ms. Wakeel [a CPS worker] at trial were "testimonial." As the trial court stated: "The children were interviewed for the expressed purpose of developing their testimony by Ms. Wakeel, under the relevant Maryland statute that provides for the testimony of certain persons in lieu of a child, in a child sexual abuse case . ..." In light of Crawford, appellant is entitled to a new trial at which the State will be prohibited from introducing any testimonial hearsay declarations of a person who (1) is available to testify, or (2) made the testimonial hearsay statements on an occasion at which the defendant did not have an opportunity for cross-examination." This case is being appealed by the Maryland Attorney General's Office.

Starr v. State, 2004 Ga. App. LEXIS 1191 (GA Ct App 2004) - One videotaped statement from the child victim was admitted at trial. Although the child did not testify, the child was in court and available for cross examination. The defense did not object to the admission of the videotaped statements. The court found no confrontation violation.

T.P. v. State, 2004 Ala. Crim. App. LEXIS 236 (Ala Crim App 2004) - This case addressed Alabama's Tender Years statute which provides for hearsay statements of children under age 12 to be admitted at trial if the child testifies or if the child is found to be unavailable. The statute does not address previous cross-examination by the child. In his case, the child did not testify at trial or any other hearing and the statements admitted at trial were the result of an interview conducted by DHR social worker and a police investigator as part of a criminal investigation. The court found that because the interview was intended to be used as an investigative tool for a potential criminal prosecution, the interview is similar to a police interrogation and, thus, falls within the definition of "testimonial."

Herrera-Vega v. State, 29 Fla. L. Weekly D 2361 (Fla Dist Ct App 5^th Dist 2004) - A 3-

year old child spontaneously told her mother, as she was putting on the child's underpants, that the defendant had placed his tongue in her "private parts." The child reluctantly repeated the story to her father minutes later. The father confronted the defendant who admitted to touching the child sexually with both his penis and tongue. The police were called and the defendant confessed to multiple sexual contacts with the child. The child refused to repeat to anyone else what she had told her parents about the incident. She was therefore found to be "unavailable" as a witness for trial and no attempt was made to call her to testify. The prosecutor offered offered two forms of evidence that Vega had sexually abused the child: the hearsay testimony from the victim's parents and Vega's confession. On appeal, the court found the child's statements to both parents to be non-testimonial because testimonial evidence does not appear to include spontaneous statements made by a child to her mother while being dressed or to her father.

State v. Harr, 2004 Ohio 5771 (2004) - "The victim was a seven-year-old girl. At trial, the victim was unable to testify as she sobbed uncontrollably. The trial court allowed her mother to testify as to what the victim said when the mother questioned her about the incident. The appellate court held that the trial court abused its discretion in admitting the hearsay testimony of the mother. The victim's statements to her mother were given nearly two weeks after the "startling event" and after the child was confronted by her mother for disobeying her order not to enter a stranger's apartment, and only after she interrogated the child with leading questions. Thus, the trial court abused its discretion in finding that victim's statements to her mother were admissible as excited utterances."

State v. McClanahan, 2004 Wash. App. LEXIS 597 - "The trial court determined that [the child] was competent to testify at trial, and after reviewing and reflecting on necessary legal factors, determined the child hearsay statements made to her teacher, her mother and the child interview specialist bore sufficient indicia of reliability to be admissible at trial. Other statements [the child] made were admitted as statements to medical professionals. Under the facts of this case there is no Crawford confrontation issue regarding the admission of the child hearsay statement because the declarant was a witness at trial and McClanahan was afforded the opportunity to cross-examine."

United States v. Yates, 18 Fla. L. Weekly Fed. C 50 (11* Cir. Ala. 2004) - This case involved two adult victims of identity fraud who lived in Australia and were outside the subpoena power of the prosecutor's office. The victim testified via live two-way video teleconferencing. The appeals court overturned the conviction and held that the testimony violated Crawford and the Confrontation Clause, and distinguished the testimony from Maryland v Craig in that face-to-face testimony was required from the victims/accusers and that no public policy outweighed this (whereas in Maryland v Craig the public policy of avoiding trauma to the child allowed for CCTV testimony).

People v. Harless, 2004 Cal. App. LEXIS 2185 (Cal App 6^th Dist 2004) - A child victim was present at trial but suffered some memory loss regarding the molestation by the defendant. The child could not remember what she had said or to whom she had said it. The prosecutor admitting the child's prior inconsistent statement describing the molestation. The Court held that in spite of some memory loss, the child was available for trial and subject to cross-examination. Therefore, there was no Crawford violation when her prior inconsistent statement was admitted.

People v. Phan, 2004 Cal. App. Unpub. LEXIS 5047 (Cal. 2004) - Child victim testified at trial concerning statements she made to police officers regarding sexual assault. At trial, child victim had poor recollection regarding police interviews. In a Crawford analysis, the court found Crawford was satisfied because the victim testified and was subject to cross-examination. The fact that the victim had poor memory and was not able to be cross-examined fully did not require reversal. Crawford requirements were satisfied.

People v. Warner, 199 Cal. App. 4^th 331 (Cal. App. 3d Dist. 2004) - In this case, the victim was 3 years old (4 years old at the time of trial). In a forensic interview, the victim said the touching by her dad happened lots of times. The victim's mother telephoned defendant (her husband) in a phone sting and he admitted to touching the child. In an interrogation with the detective, the defendant admitted to 3 touchings. At trial, the child didn't recall the forensic interview and only admitted to one touching on the witness stand. The prosecutor moved to admit the defendant's statement and argued their was sufficient corpus to admit the statement of the defendant. The court found that since the victim testified at trial and was subject to cross-examination, in spite of her lack of memory, the defendant's statement could come in as there was sufficient corpus established. No Crawford violation.

People v. T.T. (In re T.T.), 2004 111. App. LEXIS 962 (II App Ct 2004) - "Respondent was accused of having sexual relations with a seven-year-old girl. During the trial, the alleged victim, who was then nine-years-old, responded to general questions, identified respondent in court, and explained how she was at respondent's home. However, when the questions became more specific about the alleged assault, she stopped answering questions. Respondent contended that the trial court erred in finding that the alleged victim was unavailable to testify, erred in admitting testimonial statements that she gave to a police detective, an Illinois Department of Children and Family Services (DCFS) investigator, and an examining physician, and erred by denying respondent an opportunity to cross-examine her. On appeal, the court found that the trial court properly determined that the alleged victim was unavailable. Further, the alleged victim's statements to the police detective and the DCFS investigator were testimonial, and her statement to the examining physician identifying respondent as the perpetrator was testimonial. Because respondent.had no opportunity to cross-examine the alleged victim at trial, the testimonial statements were not admissible."

State v. Bobadilla, 2004 Minn. App. LEXIS 1426 (2004) - The 3 year old victim disclosed penetration by the defendant to his mother. At a forensic interview with a CPS worker and police officer, the child also disclosed penetration. At a competency hearing, the 3 year old was declared incompetent to testify. The prosecutor admitted all the child's statements, including the videotaped forensic interview. On appeal, the court declared the forensic interview to be testimonial and not admissible, "child-protection worker interviewed [the child] in the presence of Detective Akerson. She asked [the child] whether anyone had hurt him, who hurt him, and how he was hurt. These circumstances clearly indicate that the interview was conducted for purpose of developing a case against Bobadilla, and therefore, the answers elicited were testimonial in nature." However, the child's statement to his mother was not testimonial because the mother questioned the child about the redness around his anus out of concern for his health, not because she expected to develop a case against Bobadilla.

People ex rel. R.A.S., 2004 Colo. App. LEXIS 1032 (2004) - This case involved a juvenile defendant who molested a 4 year old child. The child disclosed to his mother and then during a forensic interview with a trained police officer. At trial, the child was to go through a competency hearing, but the hearing was not held. Instead, the child's statements to his mother and during the forensic interview were admitted at trial. The forensic interview was videotaped and the video was played at trial. The court did not make a conclusion about the child's unavailability since the prosecutor and defense attorney agreed that the child did not meet the competency requirements. On appeal, the court found that the statements by the child to the forensic interviewer were testimonial. Although the juvenile defendant stipulated that the child was incompetent to testify, the defendant did not waive his confrontation rights. The court found that the defendant merely waived unavailability of the child, not the right to confront. The hearsay statements to the mother were not addressed on appeal. Case was reversed in light of Crawford.

People v. Geno, 261 Mich. App. 624 (2004) - "Defendant's conviction arises out of the sexual assault of the two-year-old daughter of defendant's girlfriend. When the victim's father picked the victim up from the home of her mother and defendant, he noticed that she was acting uncomfortable and did not want her father to change her. Once he did, her father noticed irritation and bruising around the child's vaginal area as well as blood in the child's pull-up. Her father contacted Children's Protective Services, which arranged to have an assessment and interview of the child by the Children's Assessment Center. At the interview, the victim asked the interviewer to accompany her to the bathroom. The interviewer noticed blood in the child's pull-up and asked the child if she "had an owie?" The child answered, "yes, Dale [defendant] hurts me here," pointing to her vaginal area. Defendant was questioned by a City of Muskegon police detective and explained that some weeks earlier, he had changed the child and may have hurt her. He denied, however, touching her in a sexual way. During subsequent police interviews, defendant admitted that he was molested as a child, that he was sexually attracted to children, and that he had sexually fantasized about the victim. He also explained that while wiping the victim in the course of changing her, he may have accidentally inserted his finger into the victim's vagina. Defendant later wrote and signed a statement in which he admitted that his finger "penetrated her vaginal lips slightly" and that he "was slightly aroused because my finger accidentally touched her vagina". However, we conclude that the child's statement did not constitute testimonial evidence under Crawford, and therefore was not barred by the Confrontation Clause. The child's statement was made to the executive director of the Children's Assessment Center, not to a government employee, and the child's answer to the question of whether she had an "owie" was not a statement in the nature of "ex parte in-court testimony or its functional equivalent"."

People v. Vigil, 2004 Colo. App. LEXIS 1024 (2004) - "Defendant was convicted of having sexually assaulted the seven-year-old son of a co-worker in the co-worker's home. The child's father testified at trial that, when he went to check on his son, he pushed open the door to the child's room and saw defendant leaning over the child. Both were partially undressed. Defendant fled. The child, who appeared frightened and confused, told his father that defendant "stuck his winkie in his butt and his butt hurt." He also told his father's friend, who was visiting in the home, that his "butt hurt." *** "A police officer interviewed the child

about the incident, and portions of the videotaped interview were shown to the jury at trial. The child, who had been ruled incompetent, did not testify." *** "We conclude that the videotaped statement given by the child to the police officer in this case was "testimonial" under the Crawford formulations of that concept. In so concluding, we reject the People's argument that the statement could not be considered testimonial because it was not made during the course of police interrogation and because a seven-year-old child would not reasonably expect his statements to be used prosecutorially." *** "The police officer who conducted the interview had had extensive training in the particular interrogation techniques required for interviewing children. At the outset of the interview, she told the child she was a police officer, and, after ascertaining that the child knew the difference between being truthful and lying, she told him he needed to tell the truth. Thus, the absence of an oath, which in any event is not a requirement under Crawford for police interrogations, did not preclude the child's statements from being testimonial." *** "Nor can the statements be characterized as non-testimonial on the basis that a seven-year-old child would not reasonably expect them to be used prosecutorially. During the interview, the police officer asked the child what should happen to defendant, and the child replied that defendant should go to jail. The officer then told the child that he would need to talk to "a friend" of hers who worked for the district attorney and who was going to try to put defendant "in jail for a long long time." This discussion, together with the interviewer's emphasis at the outset regarding the need to be truthful, would indicate to an objective person in the child's position that the statements were intended for use at a later proceeding that would lead to punishment of defendant." NOTE: This case has been appealed to the Colorado Supreme Court.

State v. Courtney, 682 N.W.2d 185, 2004 Minn. App. LEXIS 768 (Minn. Ct. of Ap. 2004) - In this domestic violence case, the victim gave a tape recorded statement to police and her 6-yr old daughter gave a videotaped interview of what she witnessed. At trial, the victim testified for the defendant and recanted her statement. The prosecutor introduced the audio and video tapes pursuant to the residual/catchall hearsay exception. The Court of Appeals held that the statement was testimonial, however, there was no Crawford violation since the victim was present for cross examination. However, the videotaped statement of the daughter was declared to be testimonial and a violation of Crawford since she was not subject to cross examination. The Court went on to say that because the CPS worker along with a police officer interviewed the child for purposes of developing a case against the defendant, that the statement was testimonial. (NOTE: This case is being appealed by the Minnesota Attorney General's Office.)

◙ Courts are looking to the nature of why the caller is calling (i.e., requesting help, or reporting a crime)

People v. Moscat, 777 N.Y.S.2d 875 (N.Y. Sup. Ct. 2004) and People v. Cortes, 2004 N.Y. Misc. LEXIS 663 (2004) - See previous section regarding Excited Utterances in relation to 911 calls

People v. Hunter, 2004 Cal. App. Unpub. LEXIS 5548 (2004) - The victim was unavailable for trial and due diligence had been exercised in attempting to serve her with a subpoena. Victim had also invoked her Fifth Amendment privilege not to testify at the preliminary hearing against her husband. The trial court ruled that the recording of the victim's conversation with the 911 operator on the night of the assault was admissible, that the victim's statements to the police were admissible under Evidence Code section 1370, and that statements made by the victim to her neighbor and others were admissible under Evidence Code section 1240. "At trial, the neighbor testified that when his wife brought the victim to their apartment she was bleeding around her face and very upset. She told him that her boyfriend had beaten her. The neighbor called the police and the victim told the dispatcher that her boyfriend, Keith Hunter, had beaten her. She called two more people from his phone and told each of them that Hunter had beaten her. The responding officer also testified that the victim had told him that her live-in boyfriend, Keith Hunter, had beaten her. Despite the finding of unavailability, the victim ultimately testified at trial when called by the defense. Although this court requested supplemental briefing on the applicability of Crawford after reviewing the briefs submitted by both parties and the record we agree that Crawford has no application to this case. The victim whose hearsay statements were received in evidence did in fact testify. She stated that she had lied to the police and that in reality she was injured in a fight with another woman."

State v. Lewis, 2004 N.C. App. LEXIS 1958 (NC Ct App 2004) - An elderly victim died of unrelated causes to the crime prior to trial and the prosecutor introduced the victim's photo line up identification of the defendant and other statements made to police officers at trial. The conviction was reversed on appeal because the victim's identification of the defendant and statements made to police officers were testimonial in nature and violated the right to cross-examine.

People v Pirwani, 119 Cal. App. 4th 770, 14 Cal. Rptr. 3d 673, 2004 Cal. App. LEXIS 965, 2004 Cal. Daily Op. Service 5433, 2004 D.A.R. 7414 (Cal App 6^th Dist 2004) -

Defendant was a caretaker for victim, a dependent adult. Victim came into a large sum of money in August 1999, which was gone by February 2001. Threatened with eviction from her care facility for nonpayment of rent, she disclosed that she had entrusted the management of her finances to defendant. Shortly thereafter, victim died. Defendant was convicted of stealing victim's money. Defendant contends that her constitutional rights were violated at trial by the admission of two hearsay statements by victim: (1) a videotaped statement made by victim to police two days before she died, admitted into evidence pursuant to Evidence Code section 1380; and (2) a statement victim made to her social worker's supervisor the day after she spoke to the police for the first time, admitted as a spontaneous declaration pursuant to Evidence Code section 1240. The Attorney General conceded that Crawford rendered Evidence Code section 1380 unconstitutional, and that victim's videotaped statement to police was therefore erroneously admitted. The Court agreed and also concluded that victim's statement to her social worker's supervisor should not have been admitted as a spontaneous declaration. Case reversed.

Waltmon v. State, 2004 Tex. App. LEXIS 7285 - "The fact that the anonymous caller reported Appellant's erratic driving did not amount to a testimonial statement as contemplated by Crawford. The tipster's statement was not admitted to show that Appellant was indeed driving while intoxicated but to show how the officers happened to be in the area."

State v. Dedman, 2004 NMSC 37 (2004) - Blood alcohol reports are not testimonial. "A blood alcohol report is generated by SLD personnel (Scientific Laboratory Division of the Department of Health), not law enforcement, and the report is not investigative or prosecutorial. Although the report is prepared for trial, the process is routine, non-adversarial, and made to ensure an accurate measurement. While a government officer prepared the report, she is not producing testimony for trial. Finally, a blood alcohol report is very different from the other examples of testimonial hearsay evidence: "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and . . . police interrogations."

"Defendant argued that the trial court erroneously admitted the results of his blood alcohol test because the accompanying certificate bore a rubber-stamped signature. The appellate court determined that an accused waived the right of confrontation if the laboratory technician was not subpoenaed, or was not called to the witness stand by either party. Defendant waived any right of confrontation by his failure to subpoena the Tennessee Bureau of Investigation (TBI) testing scientist, as a witness at trial. Defendant did not contend that the designated representative of the TBI, whose signature appeared on the certificate, was not the officially designated representative and did not insist that his presence was necessary for trial. There was nothing to contradict the implicit adoption of the facsimile by the representative as his signature. The reasonable inference was that his signature, as stamped, was authorized by the Director of the TBI."

State v. Stiernagle, 2004 Minn. App. LEXIS 776 (Minn. Ct. of Ap. 2004) - In this drunk driving case, defense counsel was limited in his cross-examination of a breath test expert. The Court held that this was not a Crawford violation since the Confrontation Clause requires an opportunity to cross examine and the trial judge is permitted to limit the scope of testimony within his discretion.

◙ If witness unavailable, argue that hearsay statements are NOT testimonial

◙ Keep your victim safe and provide support to avoid recant or unavailability